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“China’s green laws are useless”

Wang Jin is a Peking University professor and expert in environmental law. In a speech in August, he argued that legislation in China is failing to tackle pollution. This is a summary of his remarks.

Since 1979, the National People’s Congress and its Standing Committee have passed as many as 280 pieces of legislation, of which 29 – almost 10% – relate to environmental resources, energy and clean production. No one can say that legislative efforts in this field have been weak. In addition, civil, criminal and business laws have grown to include regulation on environmental and resource protection, subjects that have also featured in the rulings of the State Council, China’s highest administrative authority.

Similarly, environmental-protection bodies have developed and expanded and their powers strengthened. The number of environmental-protection personnel employed at all levels of government has increased annually, an environmental law enforcement system is under construction and the number of monitoring bodies is constantly increasing.

At the same time, the government’s own figures on the state of the environment show that air and water pollution in China have already reached a critical level. Official data indicates that 150 million mu [10,000 square kilometres] of arable land in China – one tenth of our total – has been affected by pollution. Rates of cancer and other diseases are increasing, and the number of disputes over pollution has increased by 20% to 25% every year since 1996.

Clearly, there are major problems with the implementation of China’s environmental laws. In most western countries, legislation is evaluated some time after implementation. If China were to do the same, I believe we would find our environmental laws have failed. There are several key issues behind this:

First, China's whole legal system is not working well because the nation’s basic legislative system is incomplete. For example, the Property Law of the People’s Republic of China, which came into force as late as 2007, and the Tort Law, which was only enacted last year, not to mention a number of regulations that make up the country's administrative laws – governing organisations, procedures and enforcement – are still filled with holes. Moreover, criminal law as regards pollution is extremely weak: as long as no major pollution of the environment, no major loss of property and no major injuries result, then there is no crime. And those who pollute in the full knowledge that they are putting public health at risk are not classed as criminals.

Second, although there were no major errors in the drafting of the environmental laws, it did not produce legislation of any great merit either. In China, when you want to apply the law in order to enforce some particular responsibility, more often than not you find there is no applicable regulation.

Third, the actual articles of the law and the law’s overall aims often contradict each other. For example, there are limits on the release of pollution, but businesses are allowed to exceed those limits if they pay a fee. In spite of the law being tightened, such breaches happen all the time, and in order to collect the ensuing fines – and thereby fulfil this aspect of their duties – environmental-protection officials allow the situation to continue.

We see the same thing with the environmental-impact assessment (EIA) system. The law stresses the importance of prevention, but allows a company to go ahead with a project even if it has not carried out an assessment – as long as it promises to do one further down the line. According to our research, across the country, more than 50% of EIAs are dealt with in this way. High polluting and energy-consuming firms, in particular, are fans of this approach; if they have already got the local licence and other relevant permissions for a project, they can force through approval of their EIA, but if they talk about the EIA in advance, it’s highly likely that it won’t go through.

Similar problems are found in the realms of public participation, open information, the implementation of rectification orders and on-site checks. The truth is that all of China's laws are like this: on the surface, they look great, but when it comes to implementation, they are useless.

In May 2010, the government of Guzhen county, in the eastern province of Anhui, removed six local environmental-protection officials – including the bureau chief – from their posts. They had checked up on one firm three times within a 20 day period, a move the government claimed was damaging efforts to attract investment. A local Anhui province law requires environmental authorities to obtain approval before making checks. Other places are following suit, with the result that the biggest polluters and energy consumers are being protected by local government.

Implementation of environmental law is also affected by several judicial factors:

First, there are difficulties enforcing the sanctions handed out to polluting firms. If the company does not comply with the ruling, an application for court enforcement can be made – but the courts are unenthusiastic about this measure. In many areas, courts are graded on successful implementation of their own judgements in lawsuits. These administrative environmental punishments do not arise from their lawsuits, and therefore enforcing them does not increase the rating of the court.

Second, even getting to the point where a lawsuit is heard is tough, as courts can refuse to accept cases. China’s supreme court and local courts have regulations on the handling of so-called sensitive or special cases, meaning they can refuse to let someone bring an action and leave them with no other options to pursue. A survey of 12,000 judicial employees I once carried out found that 50% believed lawsuits were regularly being refused by courts in the name of social stability.

Second, if the case is accepted, it may not be heard. If it is heard, a judgement may not be given. And if there is a judgement, it may not be enforced.

Third, it is rare that criminal responsibility for pollution is enforced – while those who use violence to protest pollution are often prosecuted. There are so many cases where victims who have had enough of constant pollution breaches and have no means open to them of bringing a lawsuit, are finally forced to resort to violence in order to fight the polluters.

Some time back, a lawyer from the All-China Lawyers Association’s Environmental and Resources Law Committee was representing a man who, driven to his wits end, had taken direct action against a firm in the interests of self-protection. He was subsequently arrested and charged with disrupting production. In court, the lawyer said: “Companies that continuously break pollution regulations are carrying out illegal production. Local governments and the courts should pursue them in accordance with the law.” The court held that illegal pollution did not constitute illegal production – but that it was against the law to cut off the company’s power or block its roads.

China’s environmental standards can also, inadvertently, cause harm. China currently has 20 standards for atmospheric pollution, compared to 187 in the United States. So during the 2008 Olympics, when reporters complained about Beijing’s poor air quality, China proudly retorted that it had met its standards. How could this be? China does not, for example, have a standard for particulate matter of 2.5 nanometres or less – and if you don’t have a standard, you can’t breach it. This is an obvious flaw.

In addition to all of the above, there are also problems with the quantity and quality of available personnel and inadequate technology. Meanwhile, the actual amount of money spent on pollution control is far less than the authorities claim – we have seen this reflected in many individual cases, where it is claimed that hundreds of millions of yuan has been spent, but the real investment is much lower. This issue is related to insufficient funding for environmental protection.

Laws without regulation, troops without power, duties without action: in the final assessment, this is the current state of environmental law in China.

Wang Jin is a professor at Peking University’s Law School, and head of the All-China Lawyers’ Association’s Environmental and Resources Law Committee. This is an edited version of a speech he gave at the Green Reporters’ Salon.

PE Enforcement--A Farce

The fundamental flaw of China's environmental protection enforcement lies in its governmental-bureaucratic structure in which officials at the local level - from provincial, city, township down to village - are evaluated for promotion based heavily on 'GDP' (and tax revenues generated) contribution from industries under their charge. As a result, such officials often become 'protector' of the polluter.

The problem is further magnified when the environmental protection bureau at the local governmental levels is accountable to the local government - and not to an independent regulatory body such as the environmental protection ministry in Beijing. More than often, these local PE officials choose to turn a blind eye on the offender to avoid "ruffling the feather".

In short, despite of all the legislation, PE in China as of to date is nothing more than a farce.

All part of the same issue

If we wish to discuss the failure of China' green laws, we should first take a look at laws which have been successfully enacted and implemented in China as a point of comparison, so that we can make a fair analysis.

From this article it can be seen that the problem is with our legal system as a whole. As such, I personally feel that it shouldn't really come as a great surprise that our green laws are useless. Grand designs and a fancy menu count for nothing if you don't have the ingredients or a chef to actually do the cooking. What we need are practicable laws for any given circumstances, no matter how trivial. I fear even this might prove too difficult.

Laws in China and in the US

Since laws are made by people, the failure of laws can be attributed to the law-makers, it's undeniable. To understand the root of the problem, I studied the American Waxman Markey Bill, which is also called Cap&Trade Bill. Although it has recently been rejected by US senators, we can still draw some lessons from it.

This 1428 pages long bill struck me with its detailed coverage of every aspect of energy, ranging from training for workers, financial support for R&D, the requirements of the US Department of Energy, Department of Environmental Protection and even Department of Education, to the investigations of the relative industries (cement, iron and steel), emission reduction target, and subsidies, in which numerous old laws and regulations are used for reference. You must admire these Americans for taking so many issues into consideration despite the fact that when they drafted the bill nobody knew whether it would have been approved.

I am also wondering why they drafted it so carefully when they weren't even sure about the Senate's approval. Is it worth such a waste of money? I don't understand. Forget it. On the other hand, I suddenly understand why there are so many lawyers in the US (they take up 80% of the total number in the world) and why they earn so much, it is because they deserve it!
Let's take a look at the new Chinese law on energy saving. It is only 30 pages long, but it covers all the issues and no mistakes can be picked out. However, it can be perceived as very superficial and lacking in content. Therefore it is natural if you don't find it practical, because laws are not for you to use. Any question should be sent to the government who will explain everything. I am relieved when I think of this. Despite being called the same, laws in China are different from those in other countries. What would Professor Wang, the author of the article, think of my comments?

有钱能使鬼推磨

Money talks

The solution, at least say the temporary solution, is money. Money entails thoughts, but everyone has his own thoughts. It is more difficult to change the system or institution than to protect the environment. Environmental protection is a matter of technology, one that does not necessarily call for the change of system. China needs development, and it started years ago with the policy of contracting production quotas to individual households. Why? Because money talks. 'Birds die for food; people die for money.' No one is willing to take the initiative without the inspiration of money. The thing is you should let people see there is money ahead. In an ancient Chinese saying, 'money even talks to ghosts', not to mention to human beings. Amen.

匿名 | Anonymous
07:5829.09.2010

Door to heaven

According to the Bible, the gate (or door if you prefer) to heaven is narrow. And wider gates lead to hell.
I hope the profecy does not apply to the world of energy and/or environment issues.

通往天堂的大门

圣经说，通往天国的“门”（不管你怎么称呼）是狭窄的。宽敞的大门只会带你到地狱。我希望这个预言不要发生在能源和环境问题上。

gaidee
05:2701.10.2010

The blind leading the lame

In light of China's economic success (since the whole world agree on this) and also in light of the present state of the Chinese legal system, when comparing China and America, can we not draw the temporary conclusion that in actual fact, America's legal system is also not up to much? The U.S.A reportedly has the greatest number of lawyers in the world, and also the greatest number of criminals- reaching roughly 2.5 million people, causing an overcrowding crisis in prisons. From this perspective, is it not true that we can, for the moment, say that the American legal system and legislative behaviour is a complete waste of society's resources? Our own lax management and laws are at least partially effective. Looking at it from this perspective, it's a case of the the American blind leading the Chinese lame. China is lacking in some ways, but the USA is not necessarily much better.
To put it another way, if (and maybe this will never be realised) we had a legal system like the USA's, would we necessarily develop better, more advanced, and more sustainably than America? Is this line of thought more amenable to our nationalists?
Our neighbour, North Korea, is still in the middle ages, but it is a beautiful country, with free range chickens, ducks and organic food everywhere, and it has no environmental protection laws, no energy-saving laws or anything. Since their environment is better than that of America, should we be learning from the North Koreans?!
We've picked on the good example and the bad example, but where exactly should we go from here? Perhaps we should first resolve the "internal conflict among the people"

The blind leading the lame

If we follow the example fo North Korea we would have to accept that substantial numbers of people starve to death as they did in the 1990s in North Korea. It might not be so easy to get the people of North America to accept that.

盲目导致无说服力

如果我们盲从北朝鲜的例子我们不得不接受相当数量的人们因饥饿而死，如同北朝鲜在1990年代做的那样。让北美的人接受这样的观点也可能会很难。

gaidee
03:1508.10.2010

四十步笑百步：回答Yugong

The blind leading the lame and deaf

We will never copy North Korea, but we will definitely copy America. As for America, they also need to reflect on what to do. It's not easy - this step, once taken, is not easy to reverse. We need to have some breakthrough ideas before we can solve this thorny problem.

gaidee
04:2509.10.2010

认知不同

Getting to know our differences

I am starting to feel that communication is very difficult, and lots of people aren't very knowledgeable about what's happening in China. The China you see on the web is not China - you need to take the effort to experience, ponder over, research, and track things down before you can understand China's current situation and its future.